Friday, December 19, 2014

On December 7, 1941 at 7:48 a.m.,
the first wave of Japanese fighter planes attacked Oahu. More than 350 fighter
planes would descend upon the island. The Japanese managed to destroy and
damage battleships, cruisers, and hundreds of planes. A total of 2,403 people
were killed—68 were civilians—in 90 minutes. The Pearl Harbor naval base wasn’t
the only attack sight. Bombs dropped all over Honolulu.

When we look back on it, most note
that daring raid by the Japanese as the start of America’s entry into World War
Two. The phrase, “remember Pearl Harbor” became a clarion call in the United
States. It was a rallying cry to mobilize American forces into a global
conflict fought in two theaters on the opposite ends of the globe. We still
remember Pearl Harbor with ceremonies, memorials, and speeches.

But many have forgotten that December 7, 1941 marks
the start of one of the longest violations in history. Hawaii had been a U.S. territory
and instead of a state constitution, the operative document was the Organic
Act—an act of Congress that established and set up the territorial government
of Hawaii.

Buried deep in the Act was a provision allowing the
governor to suspend habeas corpus and declare martial law “in case of rebellion
or invasion, or imminent danger thereof, when the public safety requires it.”

The governor in 1941 was Joseph Poindexter. Hours
after the attack at 3:30 p.m., Poindexter sat at his office at Iolani Palace surrounded
by military brass. No one knew if the Japanese would come back. The death toll
was unknown.

One of the officers in the governor’s office later
wrote that Poindexter quietly walked onto a veranda and looked over onto the
palace grounds. He saw two gaping craters in the lawn and wondered aloud if
they were there the day before the attack. No one had an answer.

He turned to the officers and said he believed
martial law was the only viable way to preserve order and keep people safe. The
tone of the former federal judge, according to the officer, “was as if he were
adjudging a death sentence.” After declaring martial law, the military took
over the territory and wouldn’t let go.

The courts were suspended and replaced with military
tribunals. The governor abdicated to a military governor whose orders were the
law.

The military regulated nearly every aspect of life
in the islands. It imposed a curfew and ordered a blackout to prevent
night-time attacks. Civilians were ordered to turn off lights and blackout the
headlights on their vehicles. Barbed wire was set up across beaches and checkpoints
were a common sight in Honolulu.

The military closed public schools and Japanese
language schools. Everyone over the age of six was required to be registered
and fingerprinted. Money, labor, food, traffic enforcement, and even
prostitution came under the aegis of military concern and regulation.

Civilian courts were suspended and replaced with a
military tribunal. The tribunal presided over civilian and military violators
of orders and proclamations.

Hawaii’s Japanese community became a target of exclusion
and suspicion. They were closely monitored. Japanese language schools and
Buddhist temples and a few Japanese Christian churches were shut down. Up to
1,400 people of Japanese descent were rounded up and held in internment camps
scattered throughout the islands—including a camp in Haiku here on Maui.

This was the status quo for the territory. Hawaii
had become a military dictatorship. Martial law lasted long after the threat of
invasion had passed. Years after the attack on Oahu, two civilians challenged
the validity of these courts during the occupation. The military authorities
sentenced them to prison for violating either civilian law or an order of the
military governor.

They managed to get their case to the United States
Supreme Court and the court agreed that the martial law by that point was
unlawful. The term “martial law” was supposed to “authorize the military to act
vigorously for the maintenance of an orderly civil government and for the
defense of the island against actual or threatened rebellion or invasion.” It
was not supposed to supplant civil courts.

But the final word on the legality of martial law in
Hawaii didn’t come down until 1946—after the war and long after the barb wire
was removed from the sands of Waikiki.

Friday, December 5, 2014

The grand jury has got a lot of
press lately. Two stories have highlighted this very old procedure in our
criminal justice system. The first is the national news story about Missouri
police officer Darren Wilson.

Officer Wilson shot an unarmed black teenager to
death. The death sparked protests and a clampdown by the police that made
national news. Pressure mounted to the point where the prosecutor appeared
before a grand jury and presented evidence against Wilson. The jury heard hours
of testimony and met for several days. It even heard the testimony of Wilson
himself.

When the grand jury did not indict the officer
protests erupted in more than 150 cities. The town of Ferguson was again set ablaze
and the National Guard and the police have clashed in its streets all over
again.

So what exactly is the grand jury?
Why do we even have it?

We inherited the grand jury from
England. Back in in 1166, King Henry II issued an order requiring twelve “good
and lawful” men from the community to come together and determine if any person
in their villages or towns had committed the offense of robbery, murder, theft,
arson, or other serious crimes. If they agreed, they would inform the King’s
officials and a charge would be brought. From there, the accused would probably
stand trial of some kind and would most likely be subject to a terrible demise
like hanging or decapitation.

Apparently we live in more enlightened times and the
government does not cut people’s heads off anymore. But we still use the grand
jury. It became part of English legal landscape and later the colonies. Our
founders felt it was important enough to guarantee it in the Bill of Rights.

Our state constitution has a grand
jury guarantee too. Sixteen men and women in the community are empanelled at
the start of each year and hear cases presented by the prosecutor’s office.
They hear testimony of witnesses, police officers, and whoever the prosecutor
wants to present. And then they deliberate in secret to determine if charges
should be brought. It happens in every county in the State.

So much for the history lesson.
What’s it do? The grand jury hears evidence presented by the prosecution and
determine if there’s probable cause that a crime occurred. The standard is less
demanding than proof beyond a reasonable doubt—the level of evidence needed to
convict. If the grand jury finds probable cause, it may return an indictment.
If not, it will return a no-bill.

The other thing about the grand jury is that it’s
all done in secret. The accused does not have the right to attend and certainly
is not compelled to testify. The prosecutor almost never presents defenses
before the grand jury. That’s what made the grand jury in Missouri so
different. Wilson testified and the prosecution presented possible defenses to
the shooting. Hence the nationwide disappointment and anger.

Nor is the grand jury needed for
every charge. A grand jury presentation is only required for serious crimes.
The US constitution requires it only for “infamous crimes.” Courts over the
years have ruled that certain crimes—like murder or sexual assault in the first
degree—require an indictment.

Others don’t. Driving under the
influence is not so serious that a prosecutor has to present evidence to a
grand jury. Neither is abuse of a family or household member, which is why the other
case in the news is so curious.

The other grand jury story is a local one; and it
involves another cop named Darren. This Darren—Honolulu Police Department
officer Darren Cachola—was caught on camera attacking his girlfriend in a
restaurant. The attack looked pretty savage and intense. It was so bad that
others intervened.

The Honolulu prosecutor’s office did
not file a complaint alleging the misdemeanor offense of abuse of a family or
household member. Instead, it opted to present the case to the grand jury. The
grand jury in Honolulu, as with the grand jury in Missouri, returned a no bill.
And people were scratching their heads or outraged at the lack of a
prosecution.

Perhaps the grand jury system worked in these cases
and we’re just not used to it. The grand jury is really supposed to protect the
accused from unwarranted or overzealous prosecutions. I guess everyone else
from Honolulu to Ferguson felt that these prosecutions were warranted.

But often times it’s been criticized
as a rubber stamp for the government and is known for indicting anyone for
about anything. New York Court of Appeals Chief Judge Sol Wachtler famously
said that if the prosecutor wanted to, a grand jury could “indict a ham
sandwich.” Ironically, the chief was later indicted himself. But that’s another
story for another time.